Karnataka High Court
Ayyappagouda vs Madivalayya on 22 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
-1-
NC: 2024:KHC-K:8743-DB
MFA No. 200052 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
M.F.A NO. 200052 OF 2024 (MV-I)
BETWEEN:
AYYAPPAGOUDA
S/O GOLLAPPA GOUDA MALIPATIL
AGED ABOUT 44 YEARS
OCCUPATION:AGRICULTURE/ BUSINESS
R/O NEAR BSNL OFFICER
MALLI, TAL:JEVARGI
DIST:GULBARGA
NOW RESIDING AT JALANAGAR
VIJAYAPURA
...APPELLANT
Digitally signed by (BY SRI. KOUJALAGI C.L, ADVOCATE)
SHAKAMBARI
Location: HIGH
COURT OF AND:
KARNATAKA
1. MADIVALAYYA
S/O GURAYYA HIREMATH
AGED ABOUT 49 YEARS
OCC:BUSINESS
R/O BEHIND GOVT. HIGH SCHOOL
BALKI, DISTRICT:BIDAR
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE COMPANY LTD
-2-
NC: 2024:KHC-K:8743-DB
MFA No. 200052 of 2024
S.S.FRONT ROAD
VIJAYAPURA-586 101
...RESPONDENTS
(BY SMT.SANGEETHA BHADRASHETTY, ADVOCATE FOR R2;
VIDE ORDER DATED 05.09.2024 NOTICE
TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
CALL FOR THE RECORDS AND TO MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 05.09.2023 PASSED IN MVC
NO.960/2019 ON THE FILE OF THE COURT OF THE IV
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.XV, VIJAYAPURA AT
VIJAYAPURA AND ALLOW THIS APPEAL BY ENHANCING THE
COMPENSATION AMOUNT OF RS. 26,14,750/- ONLY AS
CLAIMED BY THE APPELLANT BEFORE THIS HONOURABLE
COURT. IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
-3-
NC: 2024:KHC-K:8743-DB
MFA No. 200052 of 2024
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
The claimant-petitioner has preferred this appeal
being dissatisfied with the judgment and award dated
5.9.2023 in MVC No.960/2019 by the IV Addl. Senior Civil
Judge and Member, MACT-15, Vijayapura seeking
enhancement of compensation.
2. Parties to this appeal are referred to as per
their rank before the Tribunal.
3. It is the case of the claimant before the Tribunal
that, at 2.30 p.m. on 13.8.2018, he was moving on a
motor bike bearing Regn.No.KA.28/X-2905 along with his
sister near Basavanagudi on Kembhavi-Mall Road. When
he came near Basavanagudi, a car bearing Regn.No.KA-
18/N-1554 was driven by its driver in rash and negligent
manner came and dashed against his motorbike. Because
of this, he sustained fracture of right leg and grievous
injuries all over the body. Crime was registered in
NC: 2024:KHC-K:8743-DB
225/2018 of Kembhavi Police Station with regard to the
said accident. A claim petition was filed before the MACT
claiming compensation of Rs.37,00,000/- in all before the
Tribunal by the claimant.
4. Before the Tribunal, both the respondents
appeared and opposed the petition by filing detailed
objection statement by denying all averments with regard
to accident, injuries suffered, disability, medical expenses,
income of the claimant etc., It is contended by respondent
no.1-owner of offending car that, as on the date of the
accident, the Insurance Policy was in force and therefore,
if at all the claimant is entitled for compensation, it is for
respondent no.2 to indemnify. Whereas, respondent no.2
contend that there is violation of policy conditions and
driver of offending vehicle was not holding effective licence
therefore, respondent no.2 is not liable to pay the
compensation as the said accident has taken place not
because of any rash and negligent driving of offending car
NC: 2024:KHC-K:8743-DB
by its driver. Hence, both the respondents prayed to
dismiss the claim petition.
5. Based upon rival pleadings of both the parties,
Tribunal framed four issues. The claimant entered the
witness box as PW.1 and got marked Ex.P1 to P15 and
also examined PW.2 Dr. S.T.Malve to prove the disability
and his medical treatment. Respondent no.2 has not lead
any evidence but, has produced Insurance Policy at Ex.R1.
6. On hearing the arguments and on assessment
of the evidence, the learned Tribunal has awarded the
compensation under the various heads as under:
Sl. Heads of compensation Amount
No. in Rs.
1 Injuries, pain and suffering 20,000.00
2 Medical bills and other 4,00,000.00
incidental charges
3 Food, nourishment, special diet 10,000.00
4 Attendant and conveyance 36,000.00
charges
5 Loss of future earning capacity 5,64,000.00
6 Loss of income during the laid- 35,250.00
up period
7 Loss of amenities of life 20,000.00
Total
10,85,250.00
NC: 2024:KHC-K:8743-DB
7. The learned counsel for appellant-claimant
submits that the award of the Tribunal is on the lower side
and the learned Tribunal has not taken into consideration
the nature of injuries, medical bills, loss of future income
and other heads. It is submitted that, the compensation so
awarded require enhancement in view of the fact that the
claimant was aged 40 years at the time of accident and
was earning Rs.15,000/- per month and because of these
accidental injuries, he has become permanently disabled
and prays to allow the appeal.
8. Refuting this submission, the learned counsel
for Respondent No.2 submits that whatever the
compensation so awarded is just and proper and no
interference is required as, Tribunal has considered all the
aspects of the case and rightly awarded reasonable
compensation. Hence, prays to dismiss the appeal.
9. We have given our anxious consideration to the
facts of the case, arguments of both side and perused the
NC: 2024:KHC-K:8743-DB
record. In view of the rival submissions, the only point
that arises for consideration is:
"Whether, claimant is entitled for enhanced
compensation as prayed for."
10. So far as accident is concerned, respondents
have not disputed. Though respondent no.1 denies but,
involvement of his car bearing Regn.KA-18-N-1554 is not
in dispute. It is contended by the Insurance Company that
the vehicles have been planted to get the compensation.
But, this contention has been negatived by the Tribunal.
To show the involvement of the offending car in causing
the accident, Exs.P1 to P4, the crime records like FIR,
complaint, crime detail form and MV Report are produced
by the complainant. The learned Tribunal relying upon
these documents has rightly come to the conclusion that
the accident has taken place because of rash and negligent
driving car by its driver. Because of this accident, the car
got damaged. Therefore, we do not find any factual or
NC: 2024:KHC-K:8743-DB
legal error in such finding of the Tribunal. Hence, such a
finding does not require any interference by this Court.
11. As per the medical records, the claimant has
suffered the fracture of tibia and fibula and PW.2 doctor
has assessed disability to the extent of 50% to the right
lower limb. He relied upon Ex.P11 the disability certificate
so also X-ray films at Ex.P15. Several suggestions were
directed to the doctor with regard to the treatment but, he
denied all suggestions. According to doctor, the claimant
has suffered physical disability and not the functional
disability.
12. Relying upon the medical records and based
upon the earlier judgments of this Court, the learned
Tribunal has held that, the claimant must have suffered
whole body disability to the extent of 25% and relied upon
a judgment of this Court in New India Assurance Co., Ltd.
vs. Yousurf Basha and Another reported in 2013 SCC
OnLine Kar 9916. As rightly observed by the Tribunal, the
aforesaid disability definitely affects his earning capacity.
NC: 2024:KHC-K:8743-DB
Even on re-appreciating of evidence of the doctor as well
as medical records, the Tribunal has rightly arrived
permanent physical disability as well as earning disability
of the claimant to the extent of 25% which, in our opinion
is just and proper. More so, this finding of the Tribunal is
not challenged by the respondents by preferring any
appeal. Therefore, such finding has attained finality. We do
not find any error in such finding regarding of disability.
13. So far as age of the claimant is concerned, it is
40 years as per the petition averments. But wound
certificate shows he was aged 34 years at the time of
accident. It was the only document produced by the
claimant to show his age. According to his evidence, he
was earning Rs.15,000/- p.m prior to the accident. To
show his monthly income, except his self-serving
evidence, no document is produced. In the absence of
income proof, we have to rely upon the guidelines issued
by the KSLSA. The accident has taken place in the year
2018, the Tribunal has taken monthly notional income of
- 10 -
NC: 2024:KHC-K:8743-DB
Rs.11,750/-. The guidelines of KSLSA show that, with
regard to the accident of the year 2018, the notional
income has to be taken at Rs.12,500 per month.
Therefore, the monthly income of the claimant is assessed
at Rs.12,500/- per month.
14. As the claimant has suffered 25% disability to
the whole body, 25% of the Rs.12,500/-, would be
Rs.3,125/-. It is to be multiplied by 12 to calculate
annually. As the claimant was aged 34 years at the time
of accident, the proper multiplier would be `16' as per
judgment in Sarla Verma (Smt) and Others vs. Delhi
Transport Corporation and Another, reported in
(2009) 6 SCC 121. Thus, compensation towards loss of
income due to disability would be Rs.3,125/- x 12 x 16 =
Rs.6,00,000/-.
15. So far as conventional heads such as `pain and
suffering', `loss of income during laid up period', the
award of Tribunal is on lower side and it has to be
enhanced. With regard to medical bills since it is on actual
- 11 -
NC: 2024:KHC-K:8743-DB
basis, no interference is called. In respect of `food,
nourishment and special diet', `loss of amenities to be
enjoyed in life', the Tribunal has properly assessed the
compensation based upon the evidence placed on record
by both the side. Therefore, under these heads, except
under the head `pain and suffering', loss of income during
treatment period, no interference is required. So far as
pain and suffering, it is to be enhanced to Rs.30,000/- and
loss of income during laid up period is to be enhanced at
Rs.37,500/- (Rs.12,500 x 3). Accordingly, the claimant is
entitled for the compensation as under:
Sl. Heads of compensation Amount
No. in Rs.
1 Injuries, pain and suffering 30,000/-
2 Medical bills and other 4,00,000/-
incidental charges
3 Food, nourishment, special 10,000/-
diet
4 Attendant and conveyance 36,000/-
charges
5 Loss of future earning 6,00,000/-
capacity
6 Loss of income during the 37,500/-
laid-up period
7 Loss of amenities of life 20,000/-
Total 11,33,500/-
- 12 -
NC: 2024:KHC-K:8743-DB
16. So far as liability is concerned, respondent no.1
is owner of offending vehicle, respondent no.2 is insurer.
There is no document to show the violation of any terms
and conditions of the policy. Hence, the primary liability is
on the owner of the offending vehicle i.e. respondent no1.
and under law of indemnity the Insurance Company has to
deposit the compensation amount.
17. With this view, we answer the aforesaid point
partly in the affirmative. Resultantly, we pass the
following:
ORDER
(i) Appeal is allowed in-part.
(ii) Claimant is held entitled for enhanced
compensation of Rs.11,33,500/- as
against Rs.10,85,250/- together with
interest at the rate of 6% from the date of
petition till realization, thereby
compensation is enhanced by Rs.77,250/-.
(iii) Respondent nos.1 and 2 are jointly and
severally held liable to pay the
- 13 -
NC: 2024:KHC-K:8743-DB
compensation amount however,
respondent no.2 to deposit the
compensation amount within four weeks
from the date of receipt of the certified
copy of the judgment and award.
(iv) Rest of the final order passed by the
Tribunal remains unaltered.
(v) Draw the modified award accordingly.
(vi) Send back the trial Court records along
with the copy of the judgment forthwith.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK/-
